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United States v. Underwood

United States District Court, E.D. Virginia, Richmond Division

October 27, 2016



         This matter comes before the Court on Daymont Underwood's "Notice (In Lieu of Motion) of my Challenge to the Political Jurisdiction of the United States of America Over Me and Demand that All Charges Against Me be Dismissed as United States of America Cannot Properly Establish that it has Political or Civil Contractual Jurisdiction Over Me" (the "Notice").[1](ECF No. 40.) The United States has responded. (ECF No. 41.) Underwood has not filed a written response, and the time to do so has expired. The Court heard oral argument during the October 18, 2016 status hearing. Accordingly, the matters are ripe for disposition. The Court exercises jurisdiction pursuant to 18 U.S.C. § 3231.[2]

         I. Factual and Procedural Background

         Underwood's case has a long procedural history. From the time he began to proceed pro se, Underwood has sought continuances because he was unprepared for the scheduled hearings, failed to follow the rules and procedures of the courtroom, and presented the same argument in multiple different forms. The "Notice" is one more attempt by Underwood to raise an issue on which this Court has already ruled. The Court undertakes an extensive analysis of this improperly brought "Notice" because the Court must order a psychological evaluation pursuant to 18 U.S.C. § 4241(a) before this trial can commence.

         A. Underwood's Arrest Indictment and Arraignment

         On October 20, 2015, after a traffic stop, Underwood was arrested and charged in the Virginia court system for driving with a suspended license, failure to stop at a stop sign, possession of a firearm by a convicted felon, and possession with intent to distribute marijuana. On February 16, 2016, Underwood was charged in a one-count indictment in the Eastern District of Virginia with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). (ECF No. 1.) On April 7, 2016, Underwood made his initial appearance before the Honorable Roderick C. Young, United States Magistrate Judge, who appointed the Federal Public Defenders' office to represent Underwood. (ECF No. 8.) With counsel and Underwood present, the Court scheduled a June 15, 2016 jury trial. (ECF No. 10.)

         B. June 15.2016: Underwood Files a Motion to Dismiss on His Own Behalf

         On April 25, 2016, Underwood, through counsel, filed a Motion to Suppress Statements and Evidence based on the October 20, 2015 traffic stop. (ECF No. 15.) On June 2, 2016, at the initial hearing on the Motion to Suppress, Underwood, through counsel, requested a continuance in order to subpoena a witness. The Court continued the hearing to June 15, 2016, the original trial date.

         At the start of the June 15, 2016 hearing, Supervisory Assistant Federal Public Defender ("SAFPD") Robert Wagner informed the Court that Underwood wished to address the Court pro se. Underwood informed the Court that he did not think that he and SAFPD Wagner were "seeing eye to eye" on strategic issues regarding Underwood's case. Underwood told the Court that he had "other matters" he wanted to address that SAFPD Wagner did not "see fit" to address on his behalf, and that Underwood had his "own motions." In response to the Court's questioning, Underwood confirmed that a total lack of communication did not exist, and that he simply disagreed with SAFPD Wagner's strategy.

         SAFPD Wagner confirmed that Underwood felt "compelled" to file the motions, and that Underwood needed to do so without SAFPD Wagner's representation.[3] Underwood confirmed that desire, expressing dissatisfaction with SAFPD Wagner's refusal to file. The Court conducted extensive inquiry of Underwood and SAFPD Wagner regarding Underwood's desire to file additional motions. The Court allowed Underwood to file his Motion to Dismiss without counsel's involvement, [4] and continued the motions hearing until June 15, 2016, the original trial date. The Court also told Underwood that, to assure a speedy trial and not to waste resources, the trial would be rescheduled for June 22, 2016, and would be cancelled if the Motion to Suppress were successful. (ECF No. 20.)

         C. June 15, 2016: Underwood Moves to Proceed Pro Se

         Later in the June 15, 2016 hearing, Underwood moved orally to represent himself. Underwood stated that he and SAFPD Wagner disagreed about strategy, but that no breakdown in communication existed, and that Underwood did not wish to have a different attorney. The Court warned Underwood about the pitfalls of self-representation, noting that Underwood would be responsible for arguing his case within legal bounds, and for following all rules, deadlines, and courtroom protocol. For a second time, to accommodate Underwood's positions, the Court continued the Motion to Dismiss until July 26, 2016, continued the Motion to Suppress until July 29, 2016, and set a new trial date of August 31, 2016. That same day, Underwood filed his handwritten Motion to Dismiss, which the Court construes to have been based on the exclusionary rule, the double jeopardy clause, and vindictive prosecution. (ECF No. 23.) The United States filed a response, (ECF No. 25), and Underwood filed a reply, (ECF No. 26).[5]

         D. July 26, 2016: The Second Continued Suppression Hearing and the First Hearing on Underwood's Written Motion to Dismiss

         On July 26, 2016, the Court held the continued hearing on Underwood's Motion to Dismiss. Underwood appeared and again stated that he could not go forward because he was unprepared. Underwood complained that he had sent subpoenas to the Court that had not been acted upon. While the Court had received a "Request to Stop Transfer of Inmate" from Underwood on July l, [6] (ECF No. 26), no subpoena requests had been received or docketed. Reminding Underwood that his decision to represent himself did not exempt him from adhering to Court rules or procedure, the Court allowed Underwood to attempt to serve the subpoenas one last time, and continued argument for the vindictive prosecution aspect of his motion to dismiss to July 29, 2016.[7]

         The Court heard argument on the exclusionary rule. Underwood essentially challenged the constitutionality of the traffic stop. In his support of his motion, Underwood stood at the podium and gave his version of the facts, telling the Court to "take notice that" the prosecutor was just a "narrator of his story" who presented the officers' testimony and storyline "ex parte." (July 26 Tr. 26.) Underwood read nearly verbatim the document he had filed on July 18, 2016. (ECF No. 27.) Underwood then stated that "I would be considered as the main character who actually was there, and by this fact alone enables me to present the series of events that took place in chronological order." (July 26 Tr. 20.) The Court intervened, and reminded Underwood that he had to follow court rules:

So what I talked to you about before, so you're laying the factual background, and [] you can't do that as a lawyer. You have to swear to that under oath. And so you're disputing what the government has said about that [what] happened, and I know that you're disputing what any testimony might be. But to get this version of events on, you can't just write them down. You have to swear under oath And I actually talked to you about that when we last met, that if you're going to say something factual, it's got to be under oath.

(July 26 Tr. 21.) Thus, the Court denied the exclusionary rule aspect of the motion from the bench for several reasons, including that it largely raised issues which would be decided during the motion to suppress on July 29, 2016. (July 26 Tr. 34-37; ECF No. 38.)

         The Court also heard argument as to the double jeopardy aspect of Underwood's motion to dismiss. Underwood argued, among other things, that a dismissal under a prosecutor's motion to nolle prosse the charge was an acquittal: "But nol pros would be considered abandonment. A dismissal is actually gone. It's an acquittal." (July 26 Tr. 26.) The Court denied the double jeopardy aspects of Underwood's Motion to Dismiss for the reasons stated from the bench, including that a nolle prose "is absolutely under the law not an acquittal, " (July 26 Tr. 11.), that the case in the state involved a separate sovereign, and that, under the Blockburger test, 284 U.S. 299(1932), the federal case involved different charges. (July 26 Tr. 38-42; ECF No. 28.) The Court declined to rule on Underwood's right to travel argument because it was procedurally improper and relied on unpersuasive authority. (July 26 Tr. 42-43.)

         E. July 29, 2016: The Third Continued Suppression Hearing and First Continued Hearing on Underwood's Written Motion to Dismiss

         On July 29, 2016, the Court held a hearing on Underwood's Motion to Suppress and the vindictive prosecution aspect of his Motion to Dismiss. All three subjects of the subpoenas were not within the jurisdiction, so no witness could be served for his Motion to Dismiss for Vindictive Prosecution. Again saying that he was unprepared, Underwood objected to the motions being heard. Underwood refused assistance from standby counsel during the hearing. (July 29 Tr. 12, 17-18, 61.) Underwood came instead prepared with a lengthy "Notice" of dismissal for lack of jurisdiction which he made orally from notes at the podium. (July 29 Tr.2.) In what generously could be characterized as a non-linear presentation, Underwood stated that the Court must prove its jurisdiction because the case law he cited:

... upholds the fact that the court cannot have jurisdiction of a people since we, the people are sovereign and have the same authority as kings .... The reason for this challenge is people are human beings and a human being has natural rights, not to be confused with civil rights, [sic] are not subject to an equity court jurisdiction.

(July 29 Tr. 8.) Once again finding that the Court could deny the motion simply because Underwood did not bring it in a timely manner (or, as of that time, file it at all), and again reminding Underwood that his decision to represent himself did not exempt him from adhering to court rules or procedure, the Court denied the motion procedurally and substantively from the bench. (July 29 Tr. 12.) The Court made extensive findings about, among other things, why jurisdiction existed under 18 U.S.C. § 3231. (July 29 Tr. 15-16.) Underwood continued his objection, stating he would not go further with the case:

... until the proof has been provided Regardless of you all having jurisdiction, they have to prove that they have jurisdiction over me as a person. Because you have geographical jurisdiction over a geographical mass of people or entities or corporations, it does not mean you have jurisdiction over a people. That's still not justifying jurisdiction there.

(July 29 Tr. 16:16-23.) The Court overruled Underwood's objections. The Court then denied the motion to dismiss for vindictive prosecution, making extensive findings from the bench. (July 29 Tr. 24-28.)

         During the motion to suppress, heard just after this Court's denial of Underwood's Motion to Dismiss for Vindictive Prosecution, Underwood disrupted proceedings by objecting to jurisdiction no fewer than nine times.[8] The Court noted for the record that Underwood was making that objection on a continuing basis, and that the Court overruled it on an ongoing basis as well. (July 29 Tr. 24.) Despite that ruling, Underwood continued to interrupt with jurisdictional objections. Underwood refused standby counsel assistance, and initially refused to view evidence, instead placing his head on counsel table as if to sleep. (July 29 Tr. 33.) Eventually, after repeated reprimands, Underwood chose to participate in the motion to suppress, questioning witnesses and presenting arguments. Underwood chose not to testify during the motion. The Court denied Underwood's Motion to Suppress from the bench, again making extensive findings.[9]

         On August 5, 2016, the Court issued a written Order denying Underwood's Motion to Dismiss and Motion to Suppress, admonishing Underwood that he must follow all court procedures and rules and apply the correct substantive law.[10] (Aug. 5, 2016 Order 1, ECF No. 34.) The Court admonished Underwood that "he faces great peril in self representation during the trial, " and that "it would be in his best interest to be represented by standby counsel" during the trial. (Aug. 5, 2016 Order 1-2, ECF No. 34.)

         F. August 17, 2016: The Superseding Indictment

         Trial had been scheduled for August 31, 2016.[11] On August 17, 2016, the United States charged Underwood in a three-count superseding indictment with: (1) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g); (2) possession with the intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D); and, (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §924(c). (ECF No. 36.) These charges involve far greater potential penalties than the initial one-count indictment under which Underwood was charged; Count Three carries a mandatory minimum of five years' imprisonment and a maximum of a life sentence. The United States has represented to the Court and Underwood that the guidelines in this case likely will recommend imprisonment for 360 months to life.

         Underwood was arraigned on the superseding indictment on August 24, 2016. (ECF No. 39.) That same day, ignoring the Court's repeated admonitions to abide by court rules and procedures, Underwood orally presented and "filed" his handwritten "notice for a dismissal on jurisdictional basis once again." (Aug. 24 Tr. 3.) No written motion preceded his oral one. Underwood also argued that his case could not go forward until the Court presented its oath of office on the record. (Aug. 24 Tr. 4.) He alluded to a violation of the Thirteenth Amendment to the United States Constitution.[12] (Aug. 24 Tr. 12 ("Also everybody with RICO is extensive[sic]-this is also involving involuntary servitude as well as slavery, and it's also considered as human trafficking and kidnapping."). The Court "ma[d]e the finding that this is not involuntary servitude or slavery." (Aug. 24 Tr. 13.)

         Underwood again disrupted court proceedings, refusing to allow a record to be made. (Aug. 24 Tr. 5.) While the Court did not force him to stand when court opened, it did not allow him to yell over rulings so that no record could be made. (Id.) The hearing established a complete record of the charges, the penalties, and expected court room etiquette. (Aug. 24 Tr. 14, 19, 21.) Underwood was again reminded of the perils of self-representation. (Aug. 24 Tr. 20.) The Court once more made crystal clear to Underwood that "the right to proceed pro se is contingent upon adherence to court rules and rulings and procedures." (Aug 24 Tr. 19.) The Court warned Underwood that repeated interruptions and refusal to abide by court rulings could result in his being removed from the courtroom, meaning he would watch the trial from a video feed while his standby lawyer tried the case. (Aug. 24 Tr. 5-6, 11.) He could also be found in contempt. Underwood refused to enter a plea. The Court entered a not guilty plea for a jury trial.

         Underwood then presented the Court with a complaint for judicial misconduct: "This is judicial misconduct. Those are your papers. You just have been served." (Aug. 24 Tr. 14.) The Court filed Underwood's complaint with the United States Court of Appeals for the Fourth Circuit. ...

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